﻿Interview with Magistrate Rafael Solis of the Supreme
Court of Justice

June
16th 2011

Dr. Rafael Solis was one
of the lawyers responsible for framing the Constitution of
1987 and organizing the legal aspects of Nicaragua's first
transition from one democratically elected government to
another in 1990. That year, constitutional arrangements
were complicated by the fact that the elections had been
brought forward from November to February.

Tortilla con Sal : Can you tell us about the legal context
of the Presidential decree of January 2010 that extended the
periods of office for the magistrates of the Supreme
Court of Justice and the Supreme Electoral Council?

Rafael Solis : The fundamental thing for all the officials
in this situation , above all the magistrates of the Supreme
Electoral Council is that the political Constitution
established an Article so that until a new magistrate is
named to replace the previous one whose period of office has
expired, the current magistrate continues in his position
indefinitely until a replacement is named.

In this case the National Assembly could not name
replacements because there weren't the votes. So the
institutions could not disappear or become tied up or lame
ducks and so it was sorted out as has been done throughout
Europe, in that the interpretation of that Constitutional
article in Nicaragua was oriented to the future as a final
disposition, not just a transitory one for the moment in
which the Constitution was applied when there were
magistrates with their periods expired.

Rather it was for whenever in the future, and the
magistrates were able to continue in their posts until the
new magistrates might be named. That's what the second
clause of Article 201 states and that is the main argument
of the ruling of the Supreme Court of Justice which left the
matter clear.

As well as that, there was a decree, No. 3-2010, issued by
the President of the Republic exercising his functions which
he issued in the month of January when the National Assembly
was not in session. He has the power to issue a decree
and that also ordained in practice that all the officials
whose periods were to expire in the following months should
continue in their positions.

So that is is to say there was a Constitutional disposition,
a decree, a law issued by the President of the Republic that
is also valid, although of a lower order than the
Constitution, which obliged all us officials whose
periods have expired to stay in our posts until the new
officials are elected.

That is what has been done

Really we are working well. Currently in the Court only one
magistrate has not returned to work,. That's Dr. Cuaresma.
The National Assembly..., practically everyone is back
working and in teh Auditor General of the Republic where
there was some resistance among the Liberal Controllers,
there the Liberal Controllers are working. Some left their
position one day but returned after a couple of weeks. The
Superintendent of Banks is working with his period expired.
The Public Prosecutor of the Republic too.

The importance of this debate has been aired publicly
indicating that we should apply the Constitution and the law
by continuing in our posts until new officials are elected
and let's hope that will happen shortly.